Ronan McCrea: Arguing that Article 50 Notification Is Reversible Involves Risks for the Government

Well-placed sources have reported to the Guardian that the Government’s lawyers will argue before the Supreme Court that notice triggering Article 50 can be revoked if the UK changes its mind about leaving the EU before its departure from the Union takes place.

This marks a significant change from the strategy adopted before the High Court where lawyers for all sides agreed that once notification under Article 50 was given, it could not be revoked.

If true, this change of tack will significantly improve the Government’s chances of winning its appeal. Central to the decision of the High Court was the idea that triggering Article 50 required Parliamentary approval as, being irreversible, it inevitably led to the effective repeal of the European Communities Act 1972 which makes EU law rights and duties part of UK law.

If such notification can be withdrawn at a later stage, then the initial triggering of Article 50 need not necessarily lead to the effective repeal of the the European Communities Act. In these circumstances, it is much easier for the Supreme Court to conclude that giving notification under Article 50 does not involve an illegal use of the Government’s power to conduct foreign affairs so as to undercut Acts of Parliament.

However, going down this route involves significant dangers for the Government. EU legal experts disagree about whether notification under Article 50 can be withdrawn. One figure involved in its drafting, argues that the text of the Article contains no prohibition on withdrawing notification. On the other hand, other experts note that the two year time frame set out in the Article is intended to place pressure on the departing Member State.

Allowing a Member State to withdraw notification would undercut the point of having such a strict timetable. In addition it risks abuse of the procedure through which a state could give notification, withdraw the notification and then set the clock back to zero by giving notification once more.

One matter is clear, however. Article 50 is a provision of EU law, not UK law. This means that the only body empowered to definitively interpret it is the European Court of Justice in Luxembourg. Under Article 267 of the Treaty, national courts that need to interpret provisions of EU law should make a reference to the Court of Justice in order to clarify the meaning of such provisions.

National Supreme Courts are obliged to make such references. The only circumstance when such a reference is not necessary is when the matter is considered to be what is called “acte clair” (see Case-283/81 CILFIT). This is when the Court of Justice has ruled so often and so clearly on a particular matter that the national court can apply the relevant EU rules itself without guidance.

As this is the first time Article 50 has been used, it is obvious that “acte clair” does not apply in this instance. The Supreme Court is obliged, as a matter of EU law to refer this question to the Luxembourg Court.

Writing on this blog Mikołaj Barczentewicz argues that the Supreme Court ought not to make a reference to Luxembourg on the basis that:

“that Parliament did not intend for EU rules, like the duty to make references to the EU Court, to have any effect in UK law in matters of withdrawal from the EU. This would mean that, in UK law, the Supreme Court would have neither duty, nor even a power to make the reference.”

This mischaracterises what a reference would involve. Certainly, given the dualist nature of the British legal system and the sovereignty of Parliament , the UK authorities (either the Government or Parliament depending on the outcome of the Miller case) could decide to leave the EU unilaterally by repudiating the Treaties and/or repealing the ECA at a time of their choosing. However, they have chosen to abide by the obligation they signed upto in the the Lisbon Treaty by using the Article 50 process, not least because unilateral action would result in a very hard and disruptive Brexit.

Were the Supreme Court to make a reference in order to obtain a definitive view on the meaning of Article 50, this would not be subjecting the Brexit process to EU law. A reference would be made because the correct interpretation of a provision of EU law (Article 50) was a question of fact that needed to be resolved in order for the Supreme Court to decide whether, in this instance, UK domestic constitutional law permits the use of prerogative powers or requires the involvement of Parliament. It cannot be that the Supreme Court lacks the power to inform itself as to a relevant matter of fact in relation to litigation before it because that litigation relates to the UK’s departure from the EU.

That said, there is no way of forcing the Supreme Court to refer the matter to Luxembourg if it does not wish to do so. However, the justices may well want to avoid a scenario where they make a ruling on the basis that notification under Article 50 can be revoked only to find out through a ruling from Luxembourg later on, that it cannot.

There are several drawbacks to making a reference. It would lengthen proceedings considerably. It usually takes over a year to get an answer to an Article 267 reference from the Court of Justice, though the Court has a procedure to allow it to give rulings much more quickly in urgent cases.

In addition, the “optics” may be problematic. One can only imagine the reaction of sections of the British media to an invitation to European judges from their British counterparts to rule on elements of the Brexit process.

Nevertheless, there is no doubt that Article 50 is a matter of EU law and even the most hardened Brexiteer must recognise that it is for the EU courts to interpret what EU law means. Contesting the issue of the revocability of Article 50 before the Supreme Court makes the correct interpretation of a matter of EU law a key question of fact that the Court will have to resolved. As the European Court of Justice is the only body that can make definitive rulings on this factual issue, should the Government decide to contest this issue, it will be opening the door to involving the Luxembourg Court.

Ronan McCrea is a Senior Lecturer in Law at University College London.

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Referral to the European court would have unintended consequences. On the basic question, there is obviously a binary choice: yes / no Article 50 notification can be revoked.

I suspect the European Court would find it necessary to interpret what it means to ‘negotiate’: “… the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

The UK position is that this is a negotiation which puts everything inside EU membership on the table. This is much like the oft-cited analogy with a divorce, with bargaining over who gets the house, the cat, and the furniture. My view is it likely to be much simpler, as leaving the EU must, of needs, repudiate the EU institutions, rules, laws, obligations, duties, etc., otherwise there is no point. The UK position seems to be a divorce in which the UK gets to live in the basement, have visitation rights with the cat and share the living room. From the EU’s perspective, though, as in a divorce, is to ensure none of that happens, again, otherwise, what is the point? But it is after all EU law, so the bargaining is a bit rigged in their favour. The framework for a future relationship will also need to come under scrutiny as depending on whether the answer is yes or no, that framework needs to be defined and fixed at some point in time.

The question is whether this trilogy of considerations is connected to form any particular decision making patterns composed of revocation or not plus withdrawal arrangements plus framework for future relationship.

The EU is not going to let the UK forum shop for the answers of these three that best meet the UK’s needs, as the EU has its own position on them (which we largely know given the primacy in the EU of the four freedoms).

The European Court would need therefore to determine in which order they are answered as that underpins the bargaining positions of the UK and the EU and gives meaning to the words. They would also determine not just the narrow question of whether notification is binary but whether the gate can swing both ways and for whom.

There may be merit reading Richard Epstein’s “Bargaining with the State”.

The Guardian article concluded with a government spokesperson stating the view that article 50 was not revocable. Lawyers for the government may be considering advancing the argument, but no government minister is going to support this as David Davis has already made clear. The politics of referring the decision on our referendum to the CJEU, and that’s how it will be presented, are impossible. The government will not want to risk a reference to the CJEU and consequent explosion of the tabloid press as it accuses the courts, the government and parliament of seeking to frustrate the will of the people.

I apologise for not advancing a legal argument but the practical politics of the situation make it unlikely that revocability is an argument that will be advanced. The Jowel/Patel also offers reasons why revocation is unlikely to be a successful route.

1. If (as argued by the Claimant) invoking Art 50 through the prerogative is excluded because this would overturn statutory rights, does it become ok for the government to do so if there is an opportunity to withdraw such notice before the 2 years is up?

No.

2. If (as argued by the government) it retains the power to exercise the prerogative power unless legislation takes it away, does it matter if the notice under Art 50 is revocable?

I love it; if parliament does not like any eventual terms or more likely the great repeal agenda then the revocation question looms again. If a clause demanding we adopt the customs union is accepted but not negotiated….

In sum – we are too far down this path to escape our terms of trade, life, and services are subject to a unified EU system even after brexit; at least with this grouping.

We all know that outside the EU there will be another currency / trade crisis at some point which will result in a re-join situation…

“even the most hardened Brexiteer must recognise that it is for the EU courts to interpret what EU law means” On the contrary it appears to me after encountering many of their ilk that a hardened Brexiteer must defy all reasonable logic and argument and anything with the letters EU in it. Let the ranting begin…

Two facts are indisputable: (1) there is no consensus among informed commentators, in the UK and elsewhere, on whether an Article 50 notice can be unilaterally withdrawn by the notifier or not; and (2) a definitive answer to that question can only be obtained by referring it to the CJEU. That being so, I fail to see how it could in practice assist the government in its Supreme Court appeal to argue that such a notice is revocable. If it is the case that, if an Art. 50 notice is irrevocable, the prerogative cannot be used to deprive UK citizens of rights they enjoy pursuant to the ECA 1972 or the European Parliamentary Elections Act 2002, then it must necessarily follow that the government also cannot legitimately give such a notice under the prerogative on the assumption that it would be revocable, if there is any reasonable chance – and there clearly is – that the CJEU might hold subsequently that it was not, by which time the die would of course have been cast. Thus it would not be sufficient for the government merely to argue that an Art. 50 notice is revocable, or even to persuade the Supreme Court that on the balance of probabilities that it would be: it would have to persuade the Supreme Court that there is no reasonable doubt at all that an Article 50 notice could be withdrawn if Parliament later decided that it should be, so that a reference to the CJEU was unnecessary. That would be an insuperable hurdle, for the reasons Ronan Macrea has set out, and the Supreme Court should both make a reference and order that no Art. 50 notice could be given until after further hearings following the outcome of that reference.

The delays that would inevitably be caused by a reference to the CJEU, the political fall-out, and the significant possibility (to put it no higher) that the CJEU would confirm that an Art. 50 notice could not be withdrawn, must surely make it highly unlikely that the government will see fit to go back on its concession that such a notice is indeed irrevocable.